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Thursday, May 23, 2013

Sotheby's wants a preliminary hearing to argue
the law, and the government wants more discovery from Sotheby's to argue the
facts. That continues to be the posture of the case of United States of America v. A 10th Century Cambodian
Sandstone Sculpture Currently Located at Sotheby's.

Yesterday
federal prosecutors criticized Sotheby's and Decia Ruspoli di Poggio Suasa, claimants in the forfeiture case, for
"yet another effort to delay discovery in the case." The U.S.
Attorney's Office for the Southern District of New York objected to a letter
recently submitted by the claimants that requests a pre-discovery hearing to
discuss the meaning of Cambodia's cultural property ownership law.

Prosecutors write that the claimants “shouldnotbepermittedtodelay[the case]furtherbybeinggrantedahearingonanissuethatwillnotresolvethecase.”They argue that "the appropriate course of action is
to continue and complete fact discovery on all issues
in the case.”

The claimants
disagree, explaining that the issue of whether Cambodia's
law declares ownership over the statue is a matter the court should consider
before the claimants provide further information to prosecutors.In their May 10 letter to the federal
district court, Sotheby's and Decia Ruspoli di Poggio Suasa write that the issue of
whether Cambodia owns the statue is a matter of law, not fact, which the judge must address rather than a jury.

But federal lawyers counter that the question of whether the Duryodhana
sculpture from thePrasatChen temple at KohKeris owned by Cambodia and was stolen from that nation turns on the facts as well as the law.

Prosecutors make the two-pronged assertion that "Cambodia declared itself the owner
of the Statue through its clear and unambiguous national ownership laws" and
that "Cambodia acquired the Statue in the 'general manner' and that the Statue
was then stolen from Cambodia 'in the commonly used sense of the word.'"

The McLain/Schultz doctrine, the prosecutors argue, supports the proposition that a cultural patrimony law is one way by which a nation can own
cultural material.And Cambodia’s
national ownership law is clear, they maintain. “ClaimantsdisputeonlythatKohKerandthePrasatChentemplewere,infact,partofthenationalorcolonialdomain.” This dispute, prosecutors stress, “involve[s]factualquestionsthataremattersforsummaryjudgmentortrial.”

Prosecutors also assert
that the second way that Cambodia owns the Duryodhana
statue is through the general understanding of what it means to steal:

But Schultz and McClain certainly do not stand for the proposition that a state can
never "own" an object in the absence of a national ownership law. Rather,
McClain makes clear that a state can come
to own property either by "declar[ing]
itself the owner" through a national ownership law, or by "acquir[ing]
such property in the general manner by which private persons come to own property."
McClain,
545 F.2d at 1002. And Schultz, in
adopting the reasoning of McClain, plainly
contemplated that an object could be "stolen" not only by virtue of having
been "possessed or disposed of by an individual in violation of a national
patrimony law," but also "'stolen' in the commonly used sense of the word,
for instance, where an object is taken from a museum or a private collection."
333 F.3d at 399.

Prosecutor
allege that the monuments of Koh Ker were built by Cambodia state under Jayavarman
IV, that the state never transferred Koh Ker or the statue to anyone, that
looters stole the statue in 1972 and trafficked it in pieces to Thailand, and
that a well-known collector purchased it knowing that it was stolen. “These factual
allegations … do not depend upon an analysis of Cambodia's national ownership laws
….,” the prosecutors contend.

In an effort to press for
disclosure of information from Sotheby’s, the U.S. Attorney’s Office avers that

itwouldbemostefficienttoconductdiscoveryonallfactualissuesinthisactionsimultaneously,asthediscoverywillbelargelyoverlapping.
EvidenceregardingtheCollector,forinstance,willberelevantnotonlytotheissueofwhethertheStatuewasstolenfromCambodia,butalsototheissueof Sotheby'sknowledge of thetheft,astheAmendedComplaintallegesthatSotheby's"consultedregularlywiththeCollectorregardingthesaleofthe[Statue],"thatSotheby's"knowinglyomittedtheCollector'sacquisitionof the[Statue]fromthe provenance
information it provided,” and that Sotheby’s was informed by “a scholar of Khmer
artcloselyassociatedwiththeCollector(the"Scholar")"thattheStatuewasstolen.

The claimant’s, however, are resisting
this push.That is why they request that “theCourtschedule apretrialconferencepursuanttoRule16oftheFederalRulesofCivilProceduretodiscuss
appropriateproceduresforreachingresolutiononwhatislikelytobethedispositiveissueinthis case:whetheranyofthe
Frenchcolonialdecreesthe Governmenthasidentifiedclearlyand
unambiguouslydeclareCambodiato betheownerofthestatueatissueinthiscase."

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

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